Judge denies Henderson motion on death penalty

By RICHARD DYMOND

rdymond@bradenton.com

http://www.bradenton.com/mld/bradenton/news/local/17052868.htm

BRADENTON - The attorney for accused killer Richard E. Henderson Jr. failed Monday to convince Circuit Judge Diana Moreland to declare Florida's death penalty unconstitutional.

Assistant Public Defender Carolyn Schlemmer presented Moreland with 33 motions, including seven dealing with the death penalty, as Henderson's case inched closer to a July trial.

Henderson appeared in the Manatee County Courthouse with his head shaved and his hands and legs in shackles. He wore navy blue jail scrubs, white socks and sandals. He has been jailed since late November, 2005, when authorities say he killed his parents, paternal grandmother and younger brother.

According to court records, Schlemmer plans to call on doctors to testify that Henderson is insane.

Henderson was still and quiet throughout the nearly two-hour hearing. Once, Moreland discussed taking a short break and turned to the defendant, "Mr. Henderson, do you need a break?"

Henderson sat up in his chair and replied, "No. Thank you."

Florida's law allows a death sentence with a majority jury decision rather than a unanimous decision.

"This issue has been on the hot plate," Schlemmer argued to Moreland. "There are 38 states that allow the death penalty and Florida is the only one of them that allows it not to be a unanimous decision. We stand alone. A majority vote is all that is required. We think that's unconstitutional and in these situations life is the only sentence that can be imposed."

Moreland denied the motion, but hinted change could be coming.

"There have been strong arguments on this issue," Moreland said. "In this case, however, I am controlled by a higher court."

A circuit judge like Moreland has the authority to grant a motion that the death penalty is unconstitutional, but such a ruling would probably be appealed before a higher court, said Garrett Franzen, an Assistant State Attorney in Manatee County.

"For an issue to reach higher courts it has to start somewhere," Franzen said.

In other developments surrounding the Henderson case:

• Due to pre-trial publicity surrounding Henderson's case, attorneys agreed not to ask potential jurors in open court what they know about it for fear one might blurt out something erroneous.

"We will say, 'If you have heard anything, please raise your hand,' " Moreland said. "We don't want 60 jurors poisoned."

• Brown also agreed to a motion not to use the phrase "it is your obligation to vote for death" in his closing should the case come to a penalty phase. Brown said he uses the phrase, "voting for death would be appropriate in this instance." Brown also agreed to a motion banning derogatory language concerning the defendant in his closing.

"I've never called someone a rabid dog," Brown said, appearing a bit insulted. "In closing you do have to get critical, however."

Richard Dymond, Herald reporter, can be reached at 708-7917.